Supreme Court To Check The Doctrine Of Unintended Consequences?

Supreme CourtThis country, like all other countries, has at times lost its mind. But this country, again like all others, since it is constituted differently than the others, goes insane in unique ways. Our most spectacular breakdown occurred early in 1919, when we ratified the 18th amendment to our Constitution. The meat of that change read:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Around this same time, many other countries experimented with similar measures, but none were as drastic as the method our citizens hit upon. And no countries that were not made of Muslim majorities had any more success with the prohibition of alcohol than did the United States.

Perhaps you recall the major selling point of the progressive-led call for prohibition was health: how it would certainly improve, how in particular women and children would benefit. Drinking, the cause then as now of much disease, would necessarily decrease, even cease, and people would enter a Brave New World sound in mind and body.

Prohibition was this country’s greatest contribution to the ever-broadening fund of examples of the Doctrine of Unintended Consequences. For not only did drinking not cease, nor even slow, it picked up pace; entirely new classes of people, namely women and children, eagerly bent their wrists and swelled their livers; and everybody came to thumb their noses at what they came to see as excessive government interference in their lives.1

Did you also know that in 1895 the Supreme Court declared the income tax to be unconstitutional? And it was: unconstitutional, that is; because no provisions for it could be discovered in the text of the Constitution. The method of expedient, plastic interpretations had not yet been invented: the “living” Constitution was still many decades in the future. And so, after much experimentation in getting around the income-tax ban, progressives in 1913 were responsible for the ratification of the 16th amendment, which stated:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Much desired was a government-enforced mechanism to “level the playing field.” The rich, citizens were assured, had more money than the poor, a situation not to be desired. The money should be taken from the rich and given to the government, which would dispense a portion, but only a portion, of it to the poor.

Alas, even this most noble effort was struck with terrible ferocity by the Doctrine. For government swelled and was made fat and greedy by the proceeds. The income tax laws became a morass; rates of nearly 100% were one time in force, and now half of all citizens do not pay; cheating is rampant. It is true that some of the richest are made humble in the face of the tax, but others are elevated, and it is now the role of the government to say who these people will be.

In other words, the opposite of the law’s intention is being realized. Power is flowing into fewer and fewer hands, the government becomes more dominant and private citizens more servile. Income disparity grows.

And now we have Obamacare and its individual mandate, given to us in the name of the poor and downtrodden (and the children, of course), in the promise that all will be made healthy. The mandate gives the government the power to force citizens to engage in contracts with other citizens, regardless whether either party wants the relationship. The government will write the contracts.

Although all know, and all acknowledge the force, of the Doctrine, at least in the abstract, most feel that their ideas to usher in Utopia, or something approximate to it, are not subject to its sway. Somehow, this time will be different. What counts is whether one’s heart is in the right place. We’ll leave the details to sort out later.

Yet we already see shades of the Doctrine in Obamacare. All experience thus far shows that people on average do not become healthier when government controls health care. Why will it be different this time? And if the government is allowed to coerce behaviors it desires in the name of Health, what stops the government from increasing it reach?

The Supreme Court may be our last hope to check the forces of the Doctrine. Oral arguments begin today.


1I recommended highly Daniel Okrent’s Last Call: The Rise and Fall of Prohibition.


  1. Big Mike

    “And no countries that were not made of Muslim majorities had any more success with the prohibition of alcohol than did the United States.”

    While not completely on topic, I offer this anecdote:

    My sister and her husband lived in Saudi Arabia for 7 years, and frequently traveled to Europe on Saudia Airlines, as did many of the Saudi petit aristocracy (mostly men), dressed in thobes and behaving piously.

    The minute the aircraft left Saudi airspace, the thobes and sandals disappeared, to be replaced by the fashion jeans of the day and expensive footwear. And, apparently, the fruit juice served by the airlines began to have a peculiar intoxicating effect on those men.

    It was an open secret that the booze flowed freely among the ruling classes.

  2. The populace is trapped between rapacious healthcare providers and a government (whether republican or democrat) that uses the rallying cry of ‘for the people’ to garner more power for both itself and its corporate allies.

    Without an intelligent populace skeptical of all promises whether of business, education, healthcare, government, in short, experts of all sorts, we will continue be led to further sacrifices for ‘our own good.”

    The Supreme Court may strike down the Health Care Act which will cast us more firmly back into the arms of those professions and industries that take increasing amounts of monies in exchange for largely false promises.

    May we learn to protect ourselves from those who claim to be acting on our behalf whether from the left or the right or the middle.

  3. Briggs


    Amen, brother.

    Big Mike,

    Very true, but the furtiveness there is of an entirely different character than what happened here.

  4. Matt

    All experience thus far shows that people on average do not become healthier when government controls health care.

    So you say. What were the P-Values?

  5. Ken

    Here’s some references one can readily locate on-line with the info provided — CRS has studed the mandate, etc., as far back as 1994 — the following includes analyses by legal experts who are clearly both “for” and “against” the mandate. Until one reviews the the legal nuances in detail one basically doesn’t know what they’re talking about–relative to actual law. Personal philosophy & values are something else entirely…though they often appear to be the same as legal foundation.

    Legal – Actual Cases & thier decisions:

    Cuccinelli v Sebelius, Civil Action No. 3:10CV188-HEH

    Stay Order: Florida v UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Case No.: 3:10-cv-91-RV/EMT (Header Reads: “Case 3:10-cv-00091-RV -EMT Document 167 Filed 03/03/11”), by Judge Roger Vinson.

    Order Granting Summary Judgment: Case No.: 3:10-cv-91-RV/EMT, 31 January 2011 by Judge Roger Vinson.

    Margaret Peggy Mead et. al. v Eric H. Holder, Jr. et. al. (filed in Wash. D.C.), Case 1:10-cv-00950-GK Document 39 Filed 02/22/11, US District Judge Gladys Kessler, February 22, 2011.

    Multiple States v Multiple Agencies, D.C. Docket No. 3:10-cv-00091-RV-EMT, Case: 11-11021 Date Filed: 08/12/2011 (304 pages).

    THOMAS MORE LAW CENTER, JANN DeMARS; JOHN CECI; STEVEN HYDER; and SALINA HYDER v BARACK HUSSEIN OBAMA, Case No. 10-CV-11156 (Header Reads: “Case 2:10-cv-11156-GCS-RSW Document 28 Filed 10/07/10”), by Judge GEORGE CARAM STEEH, October 7, 2010.

    THOMASMORE LAW CENTER, et. al., v BARACK HUSSEIN OBAMA, Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit; No. 10-11156—George C. Steeh, District Judge Case: 10-2388; Argued: June 1, 2011, Decided and Filed: June 29, 2011, Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge (Header reads: “Document: 006111000199 Filed: 06/29/2011” & on-line version is indicate by “File Name: 11a0168p.06,” which his printed on the cover of decision).

    Analysis – Congressional Research Service (CRS):

    “Individual Mandate and Related Information Requirements under PPACA,” by David Newman, August 22, 2011.

    “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis,”
    7-5700,, R40725, October 15, 2010

    “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis,” 7-5700, R40725, July 24, 2009

    “Private Health Insurance Provisions in PPACA (P.L. 111-148),” April 15, 2010.



    Analysis – Heritage Foundation:

    “Whe the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional,” by Randy Barnett, Nathaniel Stewart, and Todd Gaziano; Legal Memorandum, No. 49, December 9, 2009.

    Analysis – CATO Institute:


    Also: “The Broccoli Test,”

    Analysis – SCOTUS Blog: and

  6. Ray

    Under contact law a contract entered into under duress is illegal. The contract must be voluntary. The government is going to compel you to enter into a contract with the insurance company and purchase insurance. That is illegal. Basically the government is claiming they can force you into a contract because it’s for your own good. The government is going to help you if they have to fine or imprison you to do it.

    AS I have pointed out before, health is a personal condition, not a comodity or service you can buy so you can’t insure for it. That being the case, the only person who can really care for your health is you. The doctor or government can’t care for your health. If you could really buy health insurance or health care, then Teddy Kennedy and Michael Jackson would still be alive.

  7. JH

    The historical examples, to me, only shows that government policies are subject to change, that the currently existing social supports may disappear in the future, and that absolute judgments about good and bad effects are not so absolute.

  8. Briggs


    Would you say your judgment about good and bad effects are not absolute is itself absolute?

    And here is a smiley face 🙂


    Samuelson’s article is a must read.

  9. A contract entered into under duress is at best extortion, at worst slavery. This is obvious.

    But if the SCOTUS approves the mandate, will it be a watershed event? Are the citizens of the USA going to rise up and demand the government adhere to the Constitution? They weren’t in 1913. They weren’t in 1918. They weren’t during the New Deal. Are we willing to today?

    Are we men or are we sheep? I am afraid the answer is the latter. I wish the quality of the (bulk of the) citizenry was different, but I don’t think it is.

  10. JH

    Mr. Briggs, yes, it is absolute TO ME. 🙄

  11. GoneWithTheWind

    I only disagree with your post in that once the 16th amendment passed it WAS part of the constitution. In theory we could pass an amendment to require almost anything and it would upon ratification become constitutional.

  12. DAV

    The court seems to be leaning toward treating this as a premature tax case. If the constitutionality of the mandate is considered it might just be an “Oh, by the way”.



  13. Rich

    Once upon a time the number of rabbits in Wales was thought to be a problem. So gin-traps were set where they would most likely catch rabbits, in rabbit runs. The number of rabbits increased. The gin-traps caught rabbits but they also caught rats, weasels, stoats and other predators. For each predator caught many rabbits survived who would have died.

    It’s all so obvious afterwards.

  14. Eric Anderson

    My understanding is that the Obama administration’s attorneys are currently arguing that this is in fact a tax. That way they can avoid the contractual mandate issues, because the government has power to levy taxes. This is of course in direct contradiction to the position previously taken, but it is a position they may may need to win in order to avoid being struck down.

  15. The populace (variously expressed as “the populous” and “the populance” on the Internet) of the United States is rapidly becoming worth less than the trouble it would take to save them from impending doom at the hands of the leftists.

    Worst of all, the committed, in-the-know leftists are fully aware their fondest wishes will likely bring on a collapse of our government. They’re just dumb enough to think they, the chosen, can step into the breach and create something REALLY good, this time.

    They also think they’re blessed, and thereby safe, being part of the vanguard and all. They’ll be struck down without a second thought, by the strongarm agents of the new regime. The new regime will be a lot like the current one, a thugocracy, the main difference being, the new one can act upon every whim, without fear some meddlesome citizens might mount a court challenge.

    Today’s (Tuesday’s) audio clips from the case were encouraging, but I wouldn’t bet my last quarter on PrezzObama getting his comeuppance.

  16. Frank

    I think the most astonishing aspect of Prohibition that goes unmentioned in accounts is that it was legal to drink alcoholic beverages. It was illegal to make, transport, etc., but not to consume. As Casey Stengel used to say, “You can look it up!”
    Customers of a raided speakeasy were not arrested; the proprietors were. Those who could afford it could get a doctors prescription prescription allowing them to purchase real liquor imported into the country (through a government contract awarded without competition to the Kennedy clan).
    Students of economics will be astonished to learn that the number of such prescriptions soared!
    The reasons given for not prohibiting actual consumption was some hoary mumbo-jumbo that a system of government constituted like ours could not be in the business of policing what adult citizens voluntarily put into their own bodies – how quaint!

    Thomas Jefferson – ” Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine, and the potatoe as an article of food.”

  17. RCS

    One unintended consequence of the prohibition was a surge in organised crime.

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